Citation Nr: 1319782 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 03-00 525 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for hepatitis C. [The issues of entitlement to service connection for a psychiatric disorder and a heart disorder, as well as entitlement to compensation under 38 U.S.C.A. § 1151 for additional heart disability, are addressed in a separate decision.] REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD A. C. Mackenzie, Senior Counsel INTRODUCTION The Veteran served on active duty from July 1974 to September 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board previously denied this claim in October 2003. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and, in January 2005, the Court granted a Joint Motion for Remand vacating the Board's denial. The Board subsequently remanded this case again in June 2005. The Veteran appeared for Travel Board hearings in May 2003 and April 2012, before two different Veterans Law Judges. In September 2012, he indicated through his attorney that he did not wish to appear for a third hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Board notes that the current claim was initially certified to the Board as a claim for service connection for "hepatitis C with anxiety." The question of anxiety, however, was not discussed at the May 2003 Travel Board hearing. At the same time, the April 2012 hearing addressed a separate claim for service connection for depression. In order to give the Veteran every consideration in conjunction with his appeal, and in light of the specific facts of this case, the Board has recharacterized and addressed the issue of service connection for a psychiatric disorder, encompassing depression and anxiety, in the separate and concurrent single-judge decision, rather than as part of a three-judge panel decision. As this claim is being granted in full, this action on the part of the Board will in no way prejudice the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). FINDING OF FACT The most probative evidence of record supports the conclusion that in-service risk factors not categorized as willful misconduct resulted in the Veteran's diagnosis of hepatitis C. CONCLUSION OF LAW Hepatitis C was incurred as a result of service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In the current appeal, the Board has considered whether VA has fulfilled its notification and assistance requirements, found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's fully favorable disposition of the matter on appeal, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including cirrhosis of the liver, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran's June 1974 service entrance examination and medical history reports are negative for any hepatic or other gastrointestinal disorders. An August 1974 service treatment report indicates complaints of a stomach cramp to the lower abdominal region. A May 1975 report reflects that, at age 16, the Veteran administered intravenous heroin four times but did not become addicted. While other drug use in service was noted, there was no indication of any intravenous drug use during service. The Veteran's September 1975 discharge examination report does not indicate any hepatic or other gastrointestinal abnormalities. Subsequent to service, a March 1995 private treatment record indicates that the Veteran had been contacted in regard to an abnormal liver panel done earlier in the month; he was advised to stop drinking alcohol. In November 1995, the Veteran was treated at Anaheim General Hospital in Anaheim, California and noted to have been "diagnosed with liver disease, possibly related to alcohol ingestion." A February 1996 record from George Rederich, M.D., indicates that the Veteran apparently had a history of hepatitis C. Private laboratory testing from March 1996 revealed a positive hepatitis C antibody. The Veteran was noted by Francisco Durazo, M.D., to have been apparently found to have a hepatitis C antibody positive in March 1996, with a need to confirm the diagnosis. A further record from Dr. Durazo, dated in April 1996, contains an assessment of chronic liver disease secondary to hepatitis C and alcohol abuse. A report from Bruce D. Beck, M.D., dated in November 1996, contains a notation that the Veteran admitted to "heavy use of IV drugs and alcohol for many years" and indicates that the Veteran had a history of hepatitis C and that drug hepatotoxicity from Dilantin or other medications could not be excluded, nor could hemocromatosis or alcohol use. A repeated hepatitis profile was planned. A November 1996 statement from Joel M. Kunin, M.D., indicates that the Veteran began to use "heavy drugs including intravenous drugs" in the late 1980s and that he was currently under evaluation for a possible chronic active hepatitis. Statements from Dr. Beck dated in December 1996 clearly indicate hepatitis C. In one statement, it was noted that it was unclear what was causing elevated liver enzymes because of the Veteran's history of alcohol use, positive hepatitis C, and multiple medication use. Noted possible causes included a fatty liver and signs of viral hepatitis or drug hepatotoxicity. This diagnosis was confirmed by a needle biopsy of the liver. In a September 1999 statement, Robert S. Sablove, M.D., indicated that the Veteran admitted to a past history of IV drug use in his twenties, and he reported having had a liver biopsy performed in 1997 that showed both fatty liver and an area of cirrhosis. A February 2000 treatment report from Michael Walker, M.D., contains an assessment of a history of liver cirrhosis, most likely secondary to hepatitis C, which in turn "is secondary to IV drug abuse." Dr. Walker, however, did not cite to any specific treatment or records review in making his assessment of the etiology of the Veteran's liver abnormalities. The Veteran underwent a QTC internal medicine examination in June 2000, and blood work revealed a positive hepatitis C viral antibody. The examiner correspondingly rendered a diagnosis of hepatitis C. In a May 2002 statement, the Veteran listed the following in-service hepatitis C risk factors: a non-sterile pneumatic injector air gun, other veterans' blood left on the pneumatic injector air gun, non-sterile dental equipment, contaminated food and drinking water, being forced to shave in boot camp with shared razors, barber shop electric razors, contaminated vaccines (inoculations), and shared toothbrushes in basic training. In a May 2002 statement, Mark A. Hirschkorn, M.D., noted that he had reviewed the Veteran's "medical records" and stated that there was a period in his life, in approximately 1974, where he "utilized drugs by injection." The Veteran's hepatitis C infection from approximately 1994 was also noted. Dr. Hirschkorn thus found it likely that the hepatitis C virus infection was contracted around the year 1974. The claims file also includes a July 2002 statement from Heidi L. Kolek, M.D., who noted that the Veteran had a remote history of IV drug use, but denied ever sharing needles. Also, he reported being vaccinated with a jet gun during service, which might have the potential for cross contamination. During his May 2003 Travel Board hearing, the Veteran reported that he had only tried IV drugs less than six times and that he firmly recollected that he never risked a dirty needle. Rather, he stated that he got syringes from a pharmacist, straight out of the pharmacy. He noted that his last IV drug use was in 1976. He confirmed that he was a recovering alcoholic and denied tattoos. The Veteran underwent a VA liver examination in December 2005, the report of which contains a diagnosis of a history of hepatitis C. During the examination, the Veteran reported using IV drugs (with clean needles) four times, prior to service. In a February 2006 addendum, based upon a claims file review, the examiner noted the Veteran's reported pre-service drug use, his in-service use of marijuana and hashish, and the absence of use of IV drugs during service. The examiner further found that there was no history of transfusions or tattoos and no indication that the Veteran shared razors, used a toothbrush to scrub bathroom tiles, or had an injected vaccine with air gun or jet gun with contaminated blood. Despite this, the examiner noted that "it is least likely as not that he contacted hepatitis C in the navy." In a sworn statement dated in August 2006, the Veteran noted that he had stated to doctors that he used IV drugs on four occasions with clean needles each time; however, he now asserted that he never used IV drugs at all. The claims file also includes a very detailed October 2006 report from Richard Fraser, M.D., who reviewed the Veteran's claims file. In Dr. Fraser's opinion, the Veteran became infected with the hepatitis virus while in the military, most probably by means of a jet-gun inoculators contaminated with blood containing the hepatitis C virus. Dr. Fraser noted that hepatitis C is transmitted by droplets of blood which can be microscopic in size. The fact that needle sticks are an established method of transmission of hepatitis C shows the minute amount needed to cause the disease. Smoking marijuana, along with hashish or the use of intranasal cocaine, by contrast, does not involve the spread of blood droplets; therefore, hepatitis C cannot be transmitted in this fashion. Transmission is highly suspect when individuals are sharing the same needle, as blood droplets can be spread from one individual to another in this fashion. Dr. Fraser further noted that the Veteran only used heroin four times, and his "is not the picture of an individual addicted on heroin, trying to get high quickly by any means possible, which would lead to using of a shared, infected bloody needle." Additionally, Dr. Fraser cited to the Veteran's reported sharing of a toothbrush and razor with other individuals as a potential method of spreading microscopic blood droplets and hypertension. Dr. Fraser further noted that hepatitis C typically causes symptoms of abdominal pain with right upper quadrant tenderness along with fever, malaise, and a variety of constitutional symptoms. Without treatment, the symptoms can persist for months, even years. Furthermore, Dr. Fraser described the absence of hepatitis C symptoms upon entry into service. Finally, Dr. Fraser noted that the Veteran had stomach problems in 1974 during service, but no concern was raised about the presence of hepatitis at that time, and laboratory tests were not ordered. The etiology of the Veteran's hepatitis C is addressed in the report of his May 2008 VA examination report. It should be noted at the outset that this very lengthy report has several seemingly repetitive sections and internal contradictions. During the examination, the Veteran stated that, during a routine examination in 1994, he was told that he had hepatitis C. The examiner noted that there was no history of tattoos or blood transfusions. The Veteran had a history of polysubstance abuse with oral and also IV drugs (only four times, with clean needles), prior to service, and a long history of alcohol and other drugs. Additionally, the Veteran stated that in 1974 he had shotgun vaccinations and that the shotgun had blood; he believed that this was the way he got hepatitis. The examiner initially noted, upon reviewing "the available private and VA data," that there was no definite evidence that the hepatitis C virus was contracted in service. There was no documentation of this condition in the service treatment records; most likely, the Veteran never contracted the hepatitis C virus until much later in life, and most likely many years after leaving military service. The examiner cited to the prolonged history of IV drug abuse "over the pre as well as post military active duty period," as well as a high-risk behavior pattern over many years. The examiner also noted that the Veteran had not had advanced stages of hepatitis or cirrhosis (e.g., on biopsy in December 1996). Thus, overall there was no evidence for any radiologic or serum (lab) features for advanced hepatitis; most likely he never contracted the hepatitis C virus in service or until much later in life, most likely not until many years after he left service. Curiously, the examiner's next comment is that "[i]t is least likely as not that he contracted [the hepatitis C virus] in the navy." That notwithstanding, the examiner again pointed out that the Veteran would have had much more advanced staged of hepatitis or cirrhosis of the liver had he contracted the hepatitis C virus in service and again cited to his long-term heavy alcohol abuse along with "prolonged" IV drug abuse as high potential risk factors that usually led to early progression to chronic and advanced liver disease. The examiner went on to note that there was no history of transfusion or tattoos, and "no evidence or indication...that he shared razors, used tooth brush to scrub the bathroom tiles or had an injected vaccine with an air gun or jet gun with contaminated blood...." During his April 2012 Travel Board hearing, the Veteran denied using IV drugs before, during, and after service. The Board has considered all of the above lay and medical evidence and notes that there is no suggestion that the Veteran was found to have hepatitis C until approximately two decades after service. The Board is also aware of the Veteran's well-documented use of alcohol and illegal drugs, including differing accounts of IV heroin use. In this regard, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty, and not the result of the Veteran's own willful misconduct or the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301. Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). Although no compensation shall be paid if the disability for which service connection is sought is a result of a veteran's own willful misconduct or abuse of alcohol or drugs, compensation is not precluded for an alcohol abuse disability secondary to a service-connected disability. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Instead, the law precludes compensation for primary alcohol abuse disabilities and for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Id. at 1376. In reviewing the Veteran's statements to examiners, lay statements, and testimony, the Board finds that he is a largely unreliable historian as to his IV drug history. At most times, he has reported approximately four instances of pre-service use of IV heroin, although several doctors (e.g., Dr. Beck) have indicated that he reported more extensive usage. On the other hand, the Veteran denied IV drug use at any time during his April 2012 hearing. Regardless of these obvious inconsistencies, the Veteran has not reported using shared IV needles, a risk factor for hepatitis C. There is also no indication that he used IV drugs within the approximately five years prior to initial treatment for liver problems in 1995 and 1996. Therefore, even if the Board were to accept that the Veteran had a history of IV drug use, there is insufficient evidence to support the finding that it was a significant risk factor for hepatitis C. The Board is similarly aware of the Veteran's extensive history of alcohol use and the fact that Dr. Beck suggested this as a possible risk factor for hepatitis C. That said, the Veteran has pointed to several other risk factors during service, notably sharing razors and toothbrushes, using his toothbrush for scrubbing a facility, and airgun injections that he believes contained infected blood. While the Veteran is not competent to ascertain whether he came into contact with infected blood in these instances, given his lack of medical training and credentials, he is certainly competent to recall his in-service activities and whether he underwent injections during service. See 38 C.F.R. § 3.159(a)(2). For these reasons, the Board finds that the probative value of the rather confusing and convoluted May 2008 VA examination opinion is very limited. The examiner notably dismissed the Veteran's history of shared razors, use of a toothbrush to scrub the bathroom tiles, and contaminated blood through injections, even though the Veteran is fully competent to observe and recall those occurrences. The Board also questions the examiner's characterization of the Veteran's history of IV drug use. During this examination, the Veteran reported only very limited pre-service IV drug use. The examiner nevertheless noted in one place that the Veteran had a prolonged history of IV drug abuse "over the pre as well as post military active duty period," and "prolonged" IV drug abuse was later cited as a high risk factor for hepatitis C. As described above, the Veteran has presented inconsistent statements on his IV drug abuse, but he has never described a history of IV drug use to anything like the extent described by the examiner. Significantly, and as noted above, the Veteran did not report the use of shared needles, constituting a significant risk factor. Finally, the VA examiner cited the absence of extensive liver damage until many years after service as a factor leading to the conclusion that hepatitis C was not of in-service onset, and it defies logic to offer that rationale and simultaneously find that the Veteran's own limited (and reportedly pre-service) IV drug use was a high risk factor for his current disability. The Board would also note that the February 2006 VA examination addendum addressing hepatitis C is of very limited probative value as well. The examiner used the vague phraseology of "it is least likely as not that [the Veteran] contracted hepatitis C in the navy" and also noted "no indication" of shared razors, use of a toothbrush for scrubbing bathroom tiles, or vaccine injections with infected blood despite the Veteran's uncontradicted testimony to that effect. This opinion lacks the clarity of wording to constitute persuasive evidence against the Veteran's contentions, and it also appears to be based on an inaccurate factual predicate in terms of the Veteran's reported hepatitis C risk factors. Given the weaknesses of these two VA examination opinions, the Board has turned to the August 2006 opinion of Dr. Fraser. Notably, Dr. Fraser clearly indicated that he had reviewed the Veteran's claims file in conjunction with reaching an opinion. Dr. Fraser's opinion, which fully supports the Veteran's contentions, was predicated on a detailed rationale concerning airgun injections and shared use of a toothbrush and razors. Additionally, Dr. Fraser considered the Veteran's substance abuse but described his reasons for finding that this was less of a risk factor. The opinion is also very definite in nature (noting that the Veteran "became infected with the hepatitis virus while in the military") and, in this regard, contrasts markedly with the aforementioned February 2006 opinion. In addition to the question of substance abuse, the Board remains cognizant of the extensive lapse of time of approximately two decades between separation from service and the initial hepatitis C diagnosis. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). That said, the Board may not substitute its judgment on a medical matter for the probative medical evidence of record in reaching a decision. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Here, Dr. Fraser's opinion, which contemplates limited IV drug use only early in life and links the hepatitis C diagnosis to risk factors in service that would not be classified as willful misconduct, constitutes the most persuasive medical evidence of record for the reasons cited above. In view of this, the Board finds that the competent evidence of record supports the establishment of service connection for hepatitis C, and the claim is granted in full. ORDER Entitlement to service connection for hepatitis C is granted. ___________________________ ___________________________ C. TRUEBA ROBERT E. SULLIVAN Veterans Law Judge, Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals _____________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs